Opinion
39126.
DECIDED JANUARY 4, 1983.
Certified Question from the Court of Appeals of Georgia.
Robinson Chew, Donald T. Robinson, J. Patrick Ward, for appellants.
Gilbert J. Murrah, District Attorney, for appellee.
The Court of Appeals has certified to us the following questions:
"Since [Code Ann.] § 26-9908a is in direct conflict with [Code Ann.] § 26-506 (a) and prior decisions of the Supreme Court:
"(1) Is § 26-506(a) [the statutory double jeopardy provision] superseded by § 26-9908a [providing that the offense of possession of a firearm during the commission of a felony "shall be considered a separate offense"]?
"(2) If the answer to the above question is affirmative, is existing case law interpreting the superseded Code section, where applicable, to be considered valid or controlling authority? See Chumley [v. State, 235 Ga. 540, 541 (2) ( 221 S.E.2d 13) (1975)]; Whitehead v. State, 144 Ga. App. 836 (3) ( 242 S.E.2d 754) (1978); Jackson v. State, 143 Ga. App. 406 (2) ( 238 S.E.2d 752) (1977)."
Former Code Ann. § 26-506 is now OCGA § 16-1-7, and former Code Ann. § 26-9908a is now OCGA § 16-11-106.
We recently wrote the following in Wiley v. State, 250 Ga. 343 (6) ( 296 S.E.2d 714) (1982): "The offense of possession of a firearm during the commission of a felony does not merge into the felony upon convictions for both. In 1976, the General Assembly amended Ga. Code Ann. § 26-9908a, the Code section which defines the offense of possession of a firearm during the commission of a felony. The amendment provides: `Notwithstanding any prior court decision to the contrary, any crime committed in violation of this section shall be considered a separate offense. Ga. L. 1976, pp. 1591, 1592. `Thus, there is express legislative intent to impose double punishment for conduct which violates both Code Ann. § 26-9908a and other felony statutes.' Wilson v. Zant, 249 Ga. 373, 380 ( 290 S.E.2d 442) (1982). Such double punishment is not constitutionally prohibited, nor is it violative of our double jeopardy statutes to convict a person of both possession of a firearm during the commission of a felony and the accompanying felony in a single prosecution."
Footnote added. Although this expression of legislative intent does not appear in toto in OCGA § 16-11-106 (Code Ann. §§ 26-9908a, 26-9909a), we do not find its omission from the OCGA to have been intended to repeal the legislative intent expressed by enactment of the 1976 amendment. See OCGA § 1-1-2 (Code Ann. § 102-202).
In view of the 1976 amendment to Code Ann. § 26-9908a; Ga. L. 1976, p. 1591, Chumley v. State, Whitehead v. State, and Jackson v. State, supra, are no longer controlling. See Wilson v. Zant, supra, 249 Ga. at 380.
Therefore, the answer to the first certified question is "yes" insofar as multiple punishment for the crime of possession of a firearm in the commission of a felony has been expressly authorized by the General Assembly, and the second certified question is answered in the negative.
First certified question answered in the affirmative; second certified question answered in the negative. All the Justices concur.